IN THE CASE OF:
BOARD DATE: 14 January 2014
DOCKET NUMBER: AR20130007158
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the correct separation authority and separation code.
2. The applicant states he was discharged in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), not Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He was not separated by reason of physical disability.
3. The applicant provides:
* DD Form 214
* Notification of separation for hardship
* Separation orders
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 29 October 1986. He was assigned to Fort Ord, CA.
3. On 14 June 1988, he submitted a DA Form 4187 (Personnel Action) wherein he requested separation because of hardship in accordance with Army Regulation 635-200, chapter 6.
4. On 20 June 1988, the separation authority approved his request in accordance with chapter 6, Army Regulation 635-200.
5. On 23 June 1988, Headquarters, 7th Infantry Division, Fort Ord, CA, published Orders 122-328 ordering his release from active duty, not by reason of disability, effective 15 July 1988.
6. He was honorably released from active duty on 15 July 1988. His DD Form 214 shows in:
* Item 25 (Narrative Reason for Separation) - Army Regulation 635-40, paragraph 6-3b
* Item 26 (Separation Code) - MDA
7. Army Regulation 635-200, paragraph 6-3, states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldiers (or spouses) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted.
8. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability.
9. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code "MDA" was the correct code for Soldiers separating under the provisions of paragraph 6-3b of Army Regulation 635-200 by reason of hardship.
DISCUSSION AND CONCLUSIONS:
The applicant was released from active duty under the provisions of Army Regulation 635-200 with separation code MDA. Although the separation code is correctly reflected on his DD Form 214 it appears the separation authority was inadvertently listed as Army Regulation 635-40 vice 635-200. The applicant should be entitled to correction of his DD Form 214 to show the correct separation authority.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 25 of his DD Form 214 the entry "Army Regulation 635-40" and adding the entry "Army Regulation 635-200."
_______ _ __X_____ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20130007158
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ABCMR Record of Proceedings (cont) AR20130007158
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